peace, or the like, he is unable to resist. When this is so, the act which is the result of such influence is invalid.2 § 574. Undue Influence Allied to Coercion. In order that a testamentary act be valid the testamentary common law has always required that the testator not only be free from physical restraint, but also that his mind must be free. The technical term employed is "coerced." The Roman law required that a will must originate in the free mind of the testator, and if he was coerced to make or alter his will it was voidable for that reason. The principle of wrongful coercion of the testator's mind undoubtedly originated in the Roman law, but in the spiritual courts of England, whence we derive our testamentary common law, any coercion was wrong 2 Gilbert v. Gilbert, 22 Ala. 529, 58 Am. Dec. 268; Hall's Heirs v. Hall's Exrs., 38 Ala. 131; In re Hess' Will, 48 Minn. 504, 31 Am. St. Rep. 665, 51 N. W. 614; O'Neall v. Farr, 1 Rich. L. (S. C.) 80. In Eckert v. Flowry, 43 Pa. St. 46, the following language is used: "Now that is undue influence which amounts to constraint which substitutes the will of another for that of the testator. It may be either through threats or fraud, but, however exercised, it must, in order to avoid a will, destroy the free agency of the testator at the time when the instrument is made." See, also, In re Snowball's Estate, 157 Cal. 301, 107 Pac. 598, 600; In re Ricks' Estate, 160 Cal. 467, 117 Pac. 539, 545; Gordon v. Burris, 153 Mo. 223, 239, 54 S. W. 546; Herster v. Herster, 122 Pa. St. 239, 9 Am. St. Rep. 95, 16 Atl. 342. To constitute undue influence, the influence must "destroy free agency, so that the will in question was the result of the domination of the mind of another, rather than the expression of the will and mind of the testator."-In re Miller's Estate, 36 Utah 228, 102 Pac. 996, 999. 3 Williams v. Goude, 1 Hagg. Ecc. 577, 581; Wingrove v. Wingrove, L. R. 11 Pro. Div. 81, 82; In re Campbell's Will, 136 N. Y. Supp. 1086, 1105; In re Van Ness' Will, 78 Misc. Rep. 592, 139 N. Y. Supp. 485, 492; Children's Aid Society v. Loveridge, 70 N. Y. 387, 394. 4 Domat, 29, 6, 1. ful, the term being applied in the general sense of restraint. Under modern practice, coercion, with reference to the testator's freedom of will, is the essence of undue influence. § 575. Influence, to Be Undue, Must Destroy the Free Agency of Testator. The influence on account of which a testament will be disallowed must have been such as to have destroyed freedom of action, and have consisted of coercion or importunities which could not be resisted,' destroying 5 In re Hermann's Will, 87 Misc. Rep. 476, 150 N. Y. Supp. 118, 125. The Irish probate law, from its foreign origin, its tradition and its substance, more nearly resembles our own than modern English probate law. It is well said in a leading Irish case: "That a contestant is not entitled to have an issue of undue influence left to the jury unless reasonable evidence is given: (1) That the person charged had influence over the testator; (2) that he exercised such undue influence over him to the extent of coercion; and (3) that the execution of the impeached paper was procured by the exercise of such coercion as the causa causans of the act itself."-Longford v. Purdon, 1 L. R. Ir. 75, 80; In re Caffrey's Will, 95 Misc. Rep. 466, 159 N. Y. Supp. 99, 104. 6 Mason v. Bowen, 122 Ark. 407, 183 S. W. 973; In re Caffrey's Will, 95 Misc. Rep. 466, 159 N. Y. Supp. 99, 102; Matter of Van Ness' Will, 78 Misc. Rep. 592, 599, 139 N. Y. Supp. 485; Matter of Hermann's Will, 87 Misc. Rep. 476, 150 N. Y. Supp. 118. 7 Layman v. Conrey, 60 Md. 286; Brackey v. Brackey, 151 Iowa 99, 130 N. W. 370; In re Caffrey's Will, 95 Misc. Rep. 466, 159 N. Y. Supp. 99, 102. Undue influence has been defined as influence of such a nature that the volition of a testator is subjected to the coercion or domination of another person.-Parfitt v. Lawless, (1876) L. R. 2 P. & D. 462; Wingrove v. Wingrove, (1886) L. R. 11 Pro. Div. 81; Baudains v. Richardson, (1906) A. C. 169, at pages, 184, 185, per Lord Macnaghten. Undue influence has been defined to be a fraudulent influence overruling the control of the mind of the person operated on.-In re Craven's Will, 169 N. C. 561, 86 S. E. 587. the free agency of the testator, and so overpowering his volition as to produce a disposition of the property which he would not have made if left free to act. It may be exercised through threats, fraud, importunity, or by the silent, resistless power which the strong often exercise over the weak; but in order to avoid the will, it must destroy the volition of the testator at the time it was made so that the instrument, in effect, expresses the intent of some one other than the testator.10 8 Williams v. Goude, 1 Hagg. Ecc. 577; Kinleside v. Harrison, 2 Phillim. 449, 551; Armstrong v. Huddlestone, 1 Moore P. C. C. 478; Blakey's Heirs v. Blakey's Exx., 33 Ala. 611; Hall's Heirs v. Hall's Exrs., 38 Ala. 131; Councill v. Mayhew, 172 Ala. 295, 55 So. 314; Dolliver v. Dolliver, 94 Cal. 642, 646, 30 Pac. 4; In re Welch's Estate, 6 Cal. App. 44, 91 Pac. 336, 337; Morris v. Stokes, 21 Ga. 552; Small v. Small, 4 Greenl. (4 Me.) 220, 223, 16 Am. Dec. 253; Davis v. Calvert, 5 Gill & J. (Md.) 269, 302, 25 Am. Dec. 282; Wampler v. Wampler, 9 Md. 540; Lindsey v. Stephens, 229 Mo. 600, 129 S. W. 641; McMahon v. Ryan, 20 Pa. St. 329; Eckert v. Flowry, 43 Pa. St. 46; Turner v. Cheesman, 15 N. J. Eq. 243; Gardiner v. Gardiner, 34 N. Y. 155, 162; Rollwagen v. Rollwagen, 63 N. Y. 504; Brick v. Brick, 66 N. Y. 144; Children's Aid Society v. Loveridge, 70 N. Y. 387; Coit v. Patchen, 77 N. Y. 533; Seguine v. Seguine, 3 Keyes (42 N. Y.) 663, 669, 4 Abb. Dec. 191, 33 How. Pr. 336. See, also, Boyse v. Rossborough, 6 H. L. Cas. 2; Newhouse v. Godwin, 17 Barb. (N. Y.) 236. 9 Sheppey v. Stevens, 185 Fed. 147; In re Snowball's Estate, 157 Cal. 301, 107 Pac. 598; Whitcomb V. Whitcomb, 205 Mass. 310, 18 Ann. Cas. 410, 91 N. E. 210; Marx v. McGlynn, 88 N. Y. 357. 10 Estate of McDevitt, 95 Cal. 17, 30 Pac. 101; Estate of Motz, 136 Cal. 558, 563, 59 Pac. 294; Estate of Weber, 15 Cal. App. 224, 114 Pac. 597, 603; Goodbar v. Lidikey, 136 Ind. 1, 43 Am. St. Rep. 296, 35 N. E. 691; Schmidt v. Schmidt, 47 Minn. 451, 50 N. W. 598; In re Hess' Will, 48 Minn. 504, 31 Am. St. Rep. 665, 51 N. W. 614; In re Mueller's Will, 170 N. C. 28, 86 S. E. 719; In re Pickett's Will, 49 Ore. 127, 89 Pac. 377, 396. Undue influence is that degree of importunity which deprives a testator of his free agency, so that the instrument executed under its operation is not his free and unconstrained act; or, to state it in other language, undue influence is any improper or wrongful con § 576. Undue Influence Is Determined by Effect Produced, Not by Means Employed. The various means employed to influence testators unduly are too numerous for specific mention; but whatever destroys free agency, and constrains a person to do what is against his will, and what he would not do if left to himself, is undue influence, whether the control be exercised by physical force, threats, importunity, or any other species of mental or physical coercion. For undue influence is not measured by degree or extent, but by its effect. If it is sufficient to destroy free agency it is undue, even if it is slight." It is safe to say, however, that evidence neither of kind nor unkind treatment can alone suffice to establish undue influence.12 § 577. Influence, to Be Undue, Must Bear Directly on the Testamentary Act. Influence to be undue so as to avoid a will must bear directly upon the testamentary act; it must destroy the straint, urgency, or persuasion whereby the will of a person is overcome, and he is induced to do an act which he would not do if left to act freely.-In re Miller's Estate, 36 Utah 228, 102 Pac. 996, 999. 11 Leverett's Heirs v. Carlisle, 19 Ala. 80; In re Hess' Will, 48 Minn. 504, 31 Am. St. Rep. 665, 51 N. W. 614; Haydock's Exrs. v. Haydock, 33 N. J. Eq. 494. In Hoffman v. Hoffman, 192 Mass. 416, 78 N. E. 492, the court says: "There is no hard and fast rule. A person may be so situated, so weak and feeble, or so dependent on another, for instance, that mere talking to him or pressing a mat ... ter upon him would so affect him that, for the sake of quietness, he might do that which he did not want to do, and which, if his health had been better, or his will stronger, he would not have done. Such a case would constitute . . coercion as truly as force or duress." See, also, Ginter v. Ginter, 79 Kan. 721, 22 L. R. A. (N. S.) 1024, 101 Pac. 634; In re Hermann's Will, 87 Misc. Rep. 476, 150 N. Y. Supp. 118; Ekern v. Erickson, (S. D.) 157 N. W. 1062, 1066. 12 Tingley v. Cowgill, 48 Mo. 291; In re Gleespin's Will, 26 N. J. Eq. 523; Tawney v. Long, 76 Pa. St. 106. free agency of the testator at the time and in the act of the making of his testament.18 The influence must operate upon the mind of the testator in relation to the making of the will. It is not proof of undue influence to show that coercion was exercised in respect to other matters;11 13 In re McDevitt, 95 Cal. 17, 33, 30 Pac. 101; Estate of Langford, 108 Cal. 608, 41 Pac. 701; Estate of Calkins, 112 Cal. 296, 44 Pac. 577; In re Wilson's Estate, 117 Cal. 262, 49 Pac. 172, 711; Estate of Donovan, 140 Cal. 390, 73 Pac. 1081; Estate of Higgins, 156 Cal. 257, 104 Pac. 6, 9; In re Shaw's Will, 11 Phila. (Pa.) 51. "The undue influence which will avoid a will must be such as operates upon the mind of the testator at the time of making the will, and must be an influence relating to the will itself."-In re Kaufman's Estate, 117 Cal. 288, 295, 59 Am. St. Rep. 179, 49 Pac. 192. See, also, In re Rick's Estate, 160 Cal. 450, 117 Pac. 532, 536. Undue influence must have existed and been exercised at the time the will is made. Herr's Estate, 251 Pa. St. 223, 96 Atl. 464. 14 Seguine v. Seguine, 3 Keyes (42 N. Y.) 663, 669, 4 Abb. Dec. 191, 35 How. Pr. 336; In re Caffrey's Will, 95 Misc. Rep. 466, 159 N. Y. Supp. 99, 103. "It is extremely difficult to state in the abstract what acts will constitute undue influence. . . . It is sufficient to say that, allowing a fair latitude of construction, they must range themselves under one or other of these heads-coercion or fraud. . . . In a popular sense, we often speak of a person exercising undue influence over another, when the influence certainly is not of a nature which would invalidate a will. A young man is often led into dissipation by following the example of a companion of riper years, to whom he looks up and who leads him to consider habits of dissipation as venial, and perhaps even creditable; the companion is then correctly said to exercise an undue influence. But if, in these circumstances, the young man, infiluenced by his regard for the person who has thus led him astray, were to make a will, and leave him everything he possessed, such a will certainly could not be impeached on the ground of undue influence; nor would the case be altered merely because the companion had urged, or even importuned, the young man so to dispose of his property; provided only that in making such a will, the young man was really carrying into effect his own intention, formed without either coercion or fraud."-Boyse v. Rossborough, 6 H. L. Cas. 6. |